*1 Act, involving an offense be- committed
fore that date: Iowa, Appellee, STATE Upon request b. of the defendant Faye HILDEBRAND, Dorothy Appellant. approval and the of the court: No. 62421. (1) provisions Procedural of this Act they justly ap- insofar as are Iowa. Court of plicable; and (2) may impose The court a sentence or
suspended imposition of a under applicable this Act offense and offender. provides
The new code severe more
penalty for this offense than the old under
Code Supp.1977, because provides
now eligible violators are not
parole serving until one-third of maxi-
mum indeterminate sentence. request did However,
be sentenced under the new act.
the state he this re contends has waived
quirement by filing pursu certain motions
ant to the agree. new act. We do not
procedural sentencing provisions are set
out separately are independent of each
other. nothing wording There is
the act to suggest legislature in procedural
tended sentencing provi yoked Also,
sions to be application. their right “waiver” of his to be sentenced prior require
under the law would finding
that he knowingly, did intelligently,
voluntarily. Schneckloth Busta Cf.
monte, 412 U.S. S.Ct. (1973) (waiver
L.Ed.2d 854 rights must
be knowing, intelligent voluntary).
may not by implication be waived as con
tended the state.
We the trial hold court erred im
posing sentence under the new act request of defendant and without his right.
waiver of this We vacate therefore resentencing. sentences and remand for
JUDGMENTS VACATED AND CASES
REMANDED FOR RESENTENCING. *2 Darby- Carlin & Darbyshire
J. Hobart shire, C., appellant. Davenport, for P. Gen., Miller, L. Atty. Kermit
Thomas J. Gen., Tobey, J. Dunahoo, Atty. and E. Asst. appellee. Atty., County for Asst. Scott REYNOLDSON, Justice. Chief ap- Dorothy Hildebrand Faye Defendant upon her OM- peals entered judgment asserts trial VUI She conviction. to defer discretion abused its policy personal, a fixed because of accompa- deny an accident deferral when judgment We vacate nies violation. resentencing. and remand dispute The does 18, 1978, April defend- version the facts. OMVUI, a ant violation was arrested driv- after The Fol- parked Davenport. car in ing into a inves- lowing guilty plea presentence her defend- It disclosed tigation was ordered. old, married, and forty-three years ant was busi- in her husband’s employee a full-time working her husband’s ness. Before sixteen employed for business she had been Damage years Island Arsenal. the Rock paid had her parked car been company. insurance presentence investigation report The stat- appear to be an indi- ed defendant “would successfully complete the vidual who would normally stipulations associated probation ferred formal supervision,” and recommended sentence. receive a deferred sentencing proceedings on At the 30, 1978, receipt the court indicated presentence investigation. assistant concurred county attorney his office stated report. with the recommendation emphasized defendant’s Defense counsel record, driving rec- perfect lack of criminal ord, history, and employment excellent sentence. requested that the court defer following colloquy then ensued: Hildebrand, you Mrs. do THE COURT: say? anything you have wish to 1979; No, The Code Iowa R.Crim.P. 22. I don’t re- MRS. HILDEBRAND: provides: ally anything say. think I have I want to Section 901.2 I feel terrible about it. Upon plea guilty upon . . . Well, judgment
THE in view of the fact COURT: which a of conviction of here, rendered, there was an accident involved public am offense be the court *3 grant state, not inclined to a deferred sentenc- the from the receive from ing Therefore, in this matter. the re- judicial department district of correction- quest for a deferred sentence in this mat- services, any al and from the defendant ter is denied. may information be offered which which sentencing. question
MR. Your relevant to'the of DARBYSHIRE: Would specific may presen- Honor be more with respect to court order a the denial of the investigation deferred sentence. Is tence when the offense is only the being reason that the deferral is aggravated an or serious misdemeanor. denied fact that there was an acci- added.) provides: (Emphasis Section 901.5 dent involved? receiving examining per- After all and THE COURT: Yes. I do not believe information, including presen- tinent requires give that the law me to a de- report, any, the investigation tence if circumstances; any ferred sentence under following shall consider the sen- court policy and I have the that when there is tencing options. The court shall deter- involved, an accident I do and will not by law mine which of them is authorized grant a deferred sentence. If the Su- offense, for the of the authorized and preme tells me I have grant Court a sentences, combi- which of them or which deferred sentence when the defendant them, nation of in the discretion of the it, story. asks for then that’s another court, provide opportunity will maximum far, But so Supreme don’t believe the defendant, for the rehabilitation of the Court has said that. The Court community protection and for the has allowed sentencing judge to have by from further offenses the defendant discretion, although very some little. But and others. my discretion, in exercise of I maintain by At the time fixed the court involved, that when there is an accident sen- pronouncement judgment and particularly an accident in which the de- tence, accordingly: shall act court fault, clearly fendant is I do not be- 1. If authorized lieve it warrants a deferred and may judgment and sentence court grant I will a deferred sentence. period in accordance for an indefinite (Emphasis added.) chapter 907. imposed Trial court fine and $400 2. If the defendant is an habitual ten-day term. Confinement was sus- 902.8, the by section offender as defined pended during good behavior. pronounce judgment and im- may court suspended Her driver’s license was pose a fine. days. judgment may pronounce 3. court Defendant contends trial court’s avowed impose a fine or sentence the defend- and policy both, inflexible to defer sen- confinement, suspend and ant to or tence part when the offense an accident involved or of the sentence the execution constituted an abuse of discretion. as- chapter She provided of it as serts this resulted in trial court’s failure to judgment may pronounce 4. The court review all factors to be considered in sen- impose fine sentence the defend- tencing fashion an individualized confinement, ant to or both. punishment. 907.3, the by section If authorized assign may court defer the sentence appeal requires study
I.This us to sen- tencing procedures judicial district and alternatives under the defendant to the partment new Iowa services. Corrections Code. Chs. 901- of correctional Any such to exercise discretion. quired judgment 6. The court pronpunce recognized long has been confine- determination sentence the defendant judg- exercise of requiring as as an actual the sentence ment and then reconsider To do upon part ment of the court. 903.2. provided by section 902.4 or by the necessitates a consideration 22(3)(d) Iowa R.Crim.P. the facts and circumstances the rec- provides: “The court shall state on sound, necessary fair which are to make a selecting ord its reason for is not just determination. The court sentence.” arbitrarily a fixed permitted establish statutes make it clear that These case, that is the policy govern every as sentencing remains within trial court’s dis antithesis of discretion. exact cretionary power. We will interfere with invoked earlier reasoning was The same its section if such discre 901.5 decision Boston, 233 Iowa tionary power has been abused. See State *4 407, (1943). held This court N.W.2d 411 368, (Iowa Killpack, v. 276 N.W.2d 373 in its discretion trial court abused 776, 1979); Warner, v. 229 N.W.2d State “parole application” because consider a to 1975). (Iowa 782-83 he had experience on the bench “in all his Both before and after enactment of parole.” allowed a never Code, however, the Iowa Corrections we 385, McKeever, 276 N.W.2d In v. State actually ap have indicated trial court must (Iowa 1979), Jackson we characterized 387 ply discretion: punishment holding Boston as “that the The trial court we on review and circum- particular person must fit the weigh pertinent should and consider all consideration; each decision under stances sentence, determining proper matters in basis, and no must be made on an individual offense, including the nature of the factor, of the including the nature single circumstances, attending age, offense, solely will be determinative.” propensities character and and chances of duty his reform. The courts owe a to the recently, again we cautioned: More public as much as to defendant in deter- judge in ev- mining punish- duty sentencing proper sentence. The op- ery to consider the available ment should fit both the crime and the case is tions, all to give to due consideration individual. case, circumstances in the 1192, 1197, Cupples, State v. 260 Iowa 152 will best option to which exercise that 277, (1967). N.W.2d 280 The same rule justice society and accomplish both for Overstreet, appears in v. State 243 N.W.2d Chapter defendant. for the individual 880, (Iowa 1976), Warner, 887 v. 229 State 1975; 907, chapter see 789A [The 783, Banks, N.W.2d at v. State 213 N.W.2d guidelines to sets out Code 1979] 483, Kendall, (Iowa 1973), 487 v. State assist in this task. 909, (Iowa 1969). 167 N.W.2d 911 After Robbins, 63, (Iowa enactment of the Iowa Corrections Code it 70 v. 257 N.W.2d State applied was in Thompson, 1977). State v. 370, (Iowa 1979).
N.W.2d 371-72 It is obvi- plain it is the case before us In ous here if trial court abused its discre- court, considering the sentencing instead failing apply tion it was in the context of to consistently we minimal essential factors a reasoned discretion under this rule. identified, selected impermissibly have Pertinent is the rationale we fol attending circumstance —which one—an Jackson, lowed in 204 N.W.2d sen previously-fixed triggered the court’s (Iowa 1973) (quoting from In re Frazzi equally clear tencing policy. is ta, (Sup.Ct.1955)): 147 N.Y.S.2d 16-17 precluded rule personal, well-defined court’s rendering its discretion many There are instances in which the the exercise of Jackson, 204 N.W.2d at judgment. Court are re- and other courts See pari 321.281 must be read in Section vacate the sentence and We therefore resentencing, tri- in divi quoted at which time with section remand for materia light its employ al court shall discretion I, grants authority trial sion which courts Cupples. identified in of all those factors sentence, suspend ex judgment, defer acci- holding we do not intimate the In so sentence, impose ecution of the unimportant or irrelevant as an dent reconsider sentence. See impose and then circumstance, suggest attending nor do we Robbins, 257 N.W.2d at only di- what the sentence should be. We Iowa Correc- provisions Various imposed by an exercise of rect it shall be circum- specify tions Code offenses application court’s trial discretion apply the court cannot stances in which personal, policy relating inflexible See, g., e. sentencing options. certain only one consideration. 902.1, .7, .8, these limita- 907.3. None of §§ holding unnecessary II. makes it This viola- 321.281 first tions to a section reach defendant’s contention we should statutes, has legislature tion. In other adopt relating appel the ABA standards express its in- ability demonstrated its passing, late In we review of sentences. E.g., sentencing options. tent to eliminate indirectly note the rules defendant refers (“The imposed under this 321.218 to, being special con those identified in Court, by the suspended not be currence defendant cites from State Hor of section notwithstanding ton, 1975) (Iowa 40-42 231 N.W.2d statute.”). provision of 907.3 or other (McCormick, J., concurring), partially are *5 in type appear do not Provisions of this 22(3)(d). incorporated in Iowa R.Crim.P. section 321.281. requires sentencing That rule the court to selecting state on the record its reasons for and section It is clear section 321.281 v. the sentence. See State plan for sen comprise legislative 901.5 Luedtke, 7, (Iowa 1979) (“In 279 N.W.2d 8 in offense tencing of the those convicted order for such abuse of stan [an discretion] context, the in this volved here. As used operate, dard to it is essential for the trial to require trial court word “shall” does not selecting court to state the reasons for that only jail It means impose a sentence. Hubbs, particular disposition.”); v. State to defer discretionary power if the court’s (Iowa 1978); v. 268 N.W.2d 191 State suspend exe Beyer, (Iowa 1977). In or judgment, 258 N.W.2d 359 exercised, event, trial court did state de in this case is not cution of the sentence imposing its reason the sentence. two full at least must then serve fendant Robbins, Accord, 257 N.W.2d jail. days in Although the has not ar State III. sentencing imply the at We do not gued authority trial court lacked to defer option in sentencing court should select a jail sentence in view minimum sen in section jail provided lieu of the 321.281, The language tence of section may. that it only We hold 321.281. Code, carefully explored we have the issue. nothing lim We conclude in section 321.281 I, the in division For the reasons stated discretionary authority to its trial court’s is vacat- judgment entered in district sentencing the various section 901.5 for resentenc- ed and this case is remanded alternatives. the sentence ing. suggest what We do not true, course, It is that section 321.281 at 275 N.W.2d Thompson, should be. See provides now a first-offense OMVUI violat- imprisoned county jail or “shall be FOR REMANDED AND REVERSED But, days.” we for not less than two as RESENTENCING. pointed analogous in out in an situation Robbins, our 257 N.W.2d at State except UHLEN- concur All Justices sentencing ordinarily are couched statutes HOPP, HARRIS, McCORMICK See, mandatory language. g., in e. 902.- §§ McGIVERIN, JJ., specially. 1, .3, .7, .8, .9, who concur The Code 1979. JJ., McCORMICK, join in HARRIS UHLENHOPP, (concurring spe- Justice concurrence. special this cially). McGIVERIN, (concurring special- Justice majori- in III of the question The division legislature has ty opinion ly). whether person convicted that a
evinced an intention com- opinion, I in but feel concur driving while intoxicated of first-offense pelled write further. less than of not must serve a opinion the accident is not The states general progression days, two attending an unimportant or irrelevant as of the Code does in section 901.5 sentences I sentencing. circumstance With that in 321.281 apply. not I it has. think Section far agree, go not misdemeanor; but statement does makes a serious the offense enough. 903.1(2) ap- hence the penalty in section plies: not exceed one “imprisonment in I an accident which an OMVUI believe year, a fine to exceed one thousand not and which results is at fault dollars, 321.281 does or both.” But section driving while part in from defendant’s least making not the offense a serious stop beverage an under the influence of alcoholic misdemeanor. It contains an additional factor, although very important can be a in imprisoned “and be penalty: factor, of a not consideration days county jail less than two proper defend- sentence for individual superfluous . .” This clause is added pro- ant. law was enacted Our OMVUI says. if it what it does mean highways from acci- using tect persons purpose Assembly General must have had drinking dents caused drivers. insert amending section 321.281 to trial be would want courts so in the new criminal code. clause. did today we from (Coordinat- by the result reach Supp. terred Amendments). ing giving appropriate weight occurrence an circumstances accident and its attendant vital contains a distinction This case when a sentence. considering (Iowa Robbins, 257 N.W.2d *6 statute, 321.561, 1977). There the for confine- provision
contained one penitentiary
ment: “imprisonment years . . . more than two 903.1(2) statutes,
Here the sections two for confine- provide “imprisonment DITTMER, Appellee, to exceed one ment: Loren W. one thousand year, or a fine not to exceed both,” dollars, imprisoned and “shall be Joyce Anthony BAKER and than two county jail not less [for] Miller, Appellants. days . . .” . No. 62411. fine, may Apart I think a court than one to more Supreme Court of Iowa. example, a year for this offense. For one-year jail defendant to a days term two to be served and the year suspended, may not
balance of the but to a term of one?
sentence a defendant year
year days, two with the'one sus-
pended days be served. and the two III but concur dissent from division opinion and in the result. rest